Editorial Roundup: United States
Apr 17, 2023, 12:01 PM
Excerpts from recent editorials in the United States and abroad:
The Washington Post on Discord, classified information and leaks
Any breach in the integrity of the nation’s system of managing secrets is a cause for serious concern. The leaks of classified intelligence documents online, through Discord, a platform popular with gamers, appears to have compromised fresh and highly sensitive intelligence, a breach that is damaging and also underscores that the system of managing secrets is in deep crisis.
This does not appear, at this early stage, to be a case of foreign espionage, although the documents certainly have had sufficient time to fall into the wrong hands. It does not seem to involve a principled whistleblower, calling attention to wrongdoing or a coverup. Nor does it appear to be leaks made from a conviction that secrets must be shared to assure a more informed public, as has often been the case when classified material is passed to journalists. This is not the Pentagon Papers.
A description of the suspect and his motivations, published by The Post on Thursday, came from a young friend with firsthand experience on the server, and suggests the leader of the online group was driven by bravado, ego and anger. He complained of government overreach and flaunted the material to those around him — sometimes with racist and antisemitic slurs. The Post described him as having “persuaded some highly impressionable teenagers that he’s a modern-day gamer meets Jason Bourne.” After The Post published its report, the Justice Department announced the arrest of Jack Teixeira, an airman with the Massachusetts Air National Guard.
Keeping secrets is essential to a functioning government. Breaking the laws for a psychic joyride is a despicable betrayal of trust and oaths. In the course of the investigation, it should be determined why such highly classified materials were available to someone of a junior enlisted rank, and why they were apparently sitting on a gaming server for a month before U.S. officials realized it.
The U.S. classification system for managing secrets is overwhelmed. The Public Interest Declassification Board warned three years ago of an explosion of digital information that will further strain the system, and outlined a vision for modernization. And, as the Editorial Board has argued, too much national security information is classified, and too little declassified. The classification process should be simplified into two tiers, “secret” and “top secret,” eliminating the lower “confidential” level and reducing the number of people with access to the highest levels.
If there is anything positive to come out of the Discord leaks, it should be an overhaul to better protect and manage the nation’s most valuable secrets.
The New York Times on the Supreme Court and ethics
At least one member of the Supreme Court told Justice Clarence Thomas that there was no problem accepting privately paid luxury trips and other lavish gifts from “close personal friends” without disclosing them, according to a statement issued earlier this month by Justice Thomas. Whoever it was — names were not disclosed — gave him stunningly tone-deaf advice, given the uproar that followed when ProPublica reported that the justice had for more than 20 years accepted expensive gifts and trips from a billionaire conservative friend.
But Justice Thomas’s indulgence is just the latest and most egregious example of a weakness demonstrated by virtually every member of the court for decades, those nominated by Republican and Democratic presidents alike: a willingness to accept freebies, gifts and junkets — both costly and modest — from people and groups who find it useful to be close to nine of the most powerful people in the United States.
While some of these gifts have been disclosed (though not always in much detail), their preponderance — despite years of calls for restraint and self-policing by the court — show how vital it is that the Supreme Court adhere to a clear ethics code that would limit gifts and mandate full disclosure of all outside income to the justices.
The long list of comforts provided to Justice Thomas and his wife, Ginni, was shocking mainly in its rococo extravagance. Nine days of island cruising in Indonesia on a fully staffed superyacht. Regular flights on a private jet. Summers at a private resort in the Adirondacks, and every dollar of it paid by Harlan Crow, a real estate baron from Texas who has spent millions for decades to elect Republicans and on efforts to push the judiciary to the right.
None of it was on the justice’s annual financial disclosure form. Neither was a payment of $133,363 that Mr. Crow made to Mr. Thomas and his family in 2014 in exchange for three properties in Savannah, Georgia, including the house where the justice’s mother has lived, ProPublica reported on Thursday. Mr. Crow said he bought the real estate in order to create a Clarence Thomas museum one day. Experts said the failure to disclose the sale or the free trips was a clear violation of the Ethics in Government Act of 1978, which was intended to apply to all government employees and requires disclosure of real estate transactions and most gifts. Each branch of government was given considerable leeway in determining how it would comply with the law, and court critics have long said that the Supreme Court’s compliance was the weakest of any federal government body.
Failing to disclose gifts and transactions is only one part of the problem, though. The gifts that many justices have disclosed in full or in part over the years are often just as damaging to the court’s reputation as those they did not fully disclose. Justice Antonin Scalia took at least 258 subsidized trips while on the court, often to distant destinations, all paid for by private donors, some of which were at least partially disclosed. (He often tacked hunting trips onto trips to give speeches, but disclosed only the speeches.) He died in 2016 while staying in a luxurious Texas hunting lodge owned by John Poindexter, a wealthy businessman whose company had legal matters before the court; that trip was never officially disclosed. Justice Stephen Breyer took at least 225 subsidized trips from 2004 to 2018, according to data compiled by the Center for Responsive Politics, including trips to Europe, Japan, India and Hawaii. One was a trip to Nantucket paid for by David Rubenstein, a private equity mogul.
Justice Ruth Bader Ginsburg got a private tour of Israel in 2018 that was paid for by an Israeli billionaire, Morris Kahn, who has had business before the court. Many other justices have taken questionable trips over the years, including weeklong trips paid for by big universities and law schools, some of which were not fully disclosed on their annual reports.
The problem with these kinds of favors and gifts — regardless of whether they are disclosed — is that they badly damage the court’s reputation as the ultimate fair arbiter of the law. The court has already sunk in public esteem because of partisanship, particularly as justices nominated by Republicans have set aside precedents, public sentiment and impartiality to advance identifiably right-wing agendas. But when the court’s members accept benefits from the nation’s moneyed elite, no matter their politics, it sends a signal that ordinary Americans without those resources are at a disadvantage.
In some cases, it is not merely a signal. A ticket to the annual black-tie dinner held by the Supreme Court Historical Society costs at least $5,000 and includes the chance to mingle with the justices. The Times reported last year that at least $6.4 million of the money raised by the society came from corporations, special interest groups or lawyers with business before the court.
Organizers of these events have always vociferously denied that any influence peddling is taking place during casual social conversation. Similarly, Mr. Crow told ProPublica that the hospitality he provided was no different from what he has offered to other “dear friends” over the years, that the Thomases had never asked for it and that no court business was ever discussed. Justice Thomas made a similar point in his statement.
No matter what was discussed, the justices should avoid any appearance of trading access for gifts or becoming too close to people who want to promote their own interests. Mr. Crow’s money, for example, was used to arrange meetings at his resort between Justice Thomas and Leonard Leo, a leader of The Federalist Society, the principal organization dedicated to placing conservative jurists up and down the federal bench. Executives of corporations including Verizon and PricewaterhouseCoopers were also present at the resort at the same time as the justice, ProPublica reported.
No member of Congress or the executive branch is permitted to accept a single free cruise or flight without disclosing it. Lower-court federal judges are subject to gift limits and full disclosure rules as set out in the Judicial Conference regulations on gifts, but Chief Justice John Roberts has repeatedly said the conference’s rules do not apply to the Supreme Court. It remains “the least accountable part of our government,” as the watchdog organization Fix the Court has been saying for years.
In March, a few weeks before the news broke of Justice Thomas’s trips, the court agreed to be bound by new accounting rules that would require the disclosure of the kind of hospitality the justice accepted from Mr. Crow, as Justice Thomas acknowledged in his statement. Had the rules been in effect earlier, he would have had to disclose the trips he took.
The new rules, which apply to all federal judges, came after pressure by Democratic lawmakers, particularly Senator Sheldon Whitehouse of Rhode Island, to expand the reporting requirements for “personal hospitality” accepted by judges, particularly after the news of the many hunting trips accepted by Justice Scalia came out after his death.
But the new rules are still not very strong. As Gabe Roth, executive director of Fix the Court, points out, judges are still not required to disclose the dollar amounts of the trips, and can wait up to a year to report them. Members of Congress, by contrast, must report all such gift trips within a month, and disclose their value.
A better solution is a bill introduced by Senator Whitehouse, chairman of the Senate Judiciary courts subcommittee, which would require the court to adopt a code of conduct with disclosure rules that are at least as rigorous as those imposed on members of Congress. Justices would also have to establish clear rules about when they recuse themselves from cases and issue written statements about such recusals. Currently, they usually recuse themselves without explaining why and often do not recuse themselves when they should, as Justice Elena Kagan failed to do in a 2021 case in which she had played an earlier role as solicitor general. (After an outside observer noticed the error, the court issued a statement saying the error was inadvertent.)
The bill, which now has 16 Senate co-sponsors, is a good start, but simply disclosing gifts and trips is not enough. Justices have to stop accepting expensive gifts in the first place.
The Supreme Court could eliminate any impression that it can be seduced by oligarchical wealth by adopting the kinds of gift limits that apply to members of Congress and other federal employees. Senators cannot accept gifts (including hospitality) worth more than $50, or more than $100 from a single source in a year. They need advance permission from an ethics committee before accepting gifts from personal friends worth more than $250. Free lodging can be accepted in someone’s personal residence if the owner is not a lobbyist. House rules are similar.
An ethics office at the Supreme Court, similar to ethics committees in the House and the Senate, should be established to oversee and enforce these kinds of decisions by the justices and their employees, with public, transparent record-keeping.
Ethics rules have nothing to do with judicial partisanship. A strong set of ethical standards would apply to anyone who serves on the court, and would endure even as the ideological character of the court changes, as it may one day. The court should long ago have adopted standards of its own, but if it continues to neglect its responsibility to devise and abide by enforceable rules, Congress will have little choice but to impose its own.
In the meantime, as a sign that they take ethical lapses seriously, members of Congress need to investigate the news about Justice Thomas’s long financial relationship with Mr. Crow to determine the precise nature of the gifts and whether their secrecy violated federal ethics law. If Chief Justice Roberts doesn’t conduct a court investigation of the matter, the Senate Judiciary Committee should call on both Justice Thomas and Mr. Crow to testify. It will take effort and resolve from all branches of government to repair the tarnished reputation of the nation’s highest court, but the stakes are far too high to continue ignoring it.
The Los Angeles Times on confusion surrounding medication abortion
A federal appeals court has ruled that mifepristone, one of two drugs used in medication abortion, can remain on the market as a court case over whether it was properly approved by the FDA continues. That isn’t as good or as straightforward as it sounds.
The decision by the 5th Circuit Court of Appeals on Wednesday changes only part of a Texas federal court judge’s ruling last Friday that completely blocked the Food and Drug Administration approval of mifepristone as the case makes its way through the courts. It allows the medication to be used as it was approved in 2000 — with a plethora of rules and restrictions removed in later years.
This ruling just creates more confusion for abortion providers and pregnant people in an already bewildering legal battle. For instance, in 2016 the FDA allowed abortion medication to be dispensed by trained healthcare providers who are not necessarily doctors. The drugs used — mifepristone followed by misoprostol — could be taken at home up to 10 weeks into a pregnancy. The FDA earlier this year permanently lifted the in-person dispensing requirements and approved the mail ordering of pills.
But when mifepristone was first authorized in 2000, medication abortion pills could be dispensed only by a doctor in a clinic after three in-person medical visits and had to be taken in a doctor’s office, and it was available only up to seven weeks into a pregnancy.
Are providers really supposed to practice abortion care like it’s the year 2000? Will patients really need three in-person visits? Will midwives, nurse practitioners and physician assistants no longer be able to provide abortion pills? (A California law that took effect in 2014 allows them to provide first trimester abortion care of any kind.)
Most important, will doctors be able to prescribe it off-label, which doctors do regularly for medication they determine is safe for a use other than what the FDA approved? If so, that would mean they could prescribe up to 10 or 11 weeks off-label under the appellate court ruling.
And how is another federal court decision last Friday, which orders the FDA to continue to make mifepristone available in 17 states and the District of Columbia, affected by this appellate court ruling? Or is it?
The appellate panel appeared to believe the questionable horror stories about women experiencing severe bleeding (some bleeding during a medication abortion is normal) or needing a surgical abortion because the medication did not completely expel the pregnancy (something that happens in a very small number of cases). Mifepristone has been on the market for 23 years and has a serious adverse effect rate of about one-third of 1%. Five million people have taken the drug.
Jennifer Dalven, director of the ACLU Reproductive Freedom Project, said lawyers are still trying to figure out what the appellate court ruling means. She predicted that unless the Supreme Court steps in to restore the use of mifepristone as currently allowed by the FDA, “it will cause massive chaos and wreak havoc on access to abortion and miscarriage care.”
But that’s the whole point of the lawsuit that set this confusion in motion — to make it as difficult as possible to access the most common and affordable form of abortion. In the end, that lack of access is more likely to hurt people who can’t afford to travel to get an abortion.
The Department of Justice announced it will now appeal to the U.S. Supreme Court, which has a dismal record of protecting reproductive rights. But this is an attempt to take a safe, effective and thoroughly studied FDA-approved drug off the market not because of safety but because an antiabortion group wants it off the market. We can only hope the Supreme Court justices will see that and preserve access to this important and overwhelmingly safe medication.
The Guardian on the Pentagon leaks
There must always be a place for necessary whistleblowing from inside governments. This newspaper will always stand, responsibly, for that principle. Yet leaks are also serious matters, which challenge a state. In a particularly serious case, or at a particularly serious time, such as during a war, a leak can help an enemy, dismay allies, weaken morale and, at least potentially, change the military balance and put lives at risk.
The leak of highly classified U.S. intelligence documents covering plans to aid Ukraine’s war against Russia is unquestionably grave, both in its content and context. In Ukraine, NATO is in the midst of by far its most serious conflict for a generation. The inherent seriousness of the leaks is enhanced by other factors, including the details and numbers they contained, the breadth of the secrets’ online distribution, including to potential enemies, the length of time they were accessible, and the likelihood that the material becomes part of a disinformation campaign.
This case has particular features that distinguish it from celebrated leaks in earlier times. There is no suggestion — yet — that the leaks are the work of foreign spies. Nor do they appear to be the work of a whistleblower seeking to expose a scandal, as happened in the Pentagon Papers case during the Vietnam war, or in Edward Snowden’s exposures of US surveillance programs. There is no hard evidence that the leaker believed, as happened during WikiLeaks, that the material should be put into the public domain on freedom of information or other grounds.
Instead, the evidence points in a recognizably more contemporary and disturbing direction. The leaks were made on the social network Discord by a young male official in the Massachusetts air national guard. In the histories of espionage, and also of recent mass shootings, there have been examples of relatively anonymous young men triggering major incidents in part to boost their self-esteem. Jack Teixeira, who was arrested and charged in Boston this week, is 21, and is interested in guns, games and racist memes. He released his Pentagon documents, it has been suggested, to display his self-importance and to impress others in the online gaming chat group of which he was the leading figure.
Two large public policy questions immediately arise. One is how someone low down the intelligence food chain like Teixeira could get his hands on such material. Part of the answer is the unmanageable volume of material held by the U.S. government. For decades, there have been allegations that intelligence agencies were too bloated, slow and complex to be clear, including to themselves, about what must be secret and who should be able to access it. The digital revolution made this process even more mountainous. But, as events from WikiLeaks to these Pentagon leaks suggest, the government systems have not been fit for purpose.
The other issue is the extent of the damage. The most important aspect from a European perspective are the doubts documented over Ukraine’s ability to defend itself against Russian air power. That information should never have been seen in public in this way. It could suggest that Ukraine’s low stocks of arms mean its expected spring offensive will be difficult to carry through, leaving Kyiv highly vulnerable to Russian counterattacks. This may mean a less decisive offensive and, instead, a protracted lower intensity conflict. If that is the result, then these leaks have altered the course of history too.